The Scottish Parliament - Procedures Committee Report

The remit of the Procedures Committee is to consider and report on the practice and procedures of the Parliament in relation to its business.

Membership:
Mr Richard Baker
Chris Ballance
Karen Gillon (Deputy Convener)
Donald Gorrie (Convener)
Alex Johnstone
Kate Maclean
Mr Bruce McFee

1. In this Report, the outgoing Procedures Committee summarises the inquiries it has conducted during Session 2 and the working methods it has found effective. It also sets out some suggestions for topics that its successor committee may need or wish to pick up in Session 3.

2. During this session, the Committee has investigated a wide variety of procedural issues and published 28 reports (excluding this one). Apart from the four annual reports, all but one (a “consultation report” on Parliamentary time) proposed changes to the standing orders, as well as making a number of other recommendations. All the changes to standing orders that the Committee has recommended have been agreed by the Chamber, except for those in the last report we published, the Review of Parliamentary Time report. As a result, the standing orders have been revised on twelve occasions during the session, with the last of these taking the form of a new (3rd) edition for the new session.

3. The main subjects covered by the Committee’s reports this session have been:

4. There have also been smaller-scale inquiries on issues such as petitions, motions and subordinate legislation. These have led to a range of changes to the standing orders aimed at increasing flexibility, removing anomalies and bringing the Rules into line with established practice or new statutory requirements (3rd and 5th Reports, 2004, 1st and 6th Reports, 2005, 4th, 7th, 9th and 10th Reports, 2006).

5. Finally, some work has been undertaken that has not resulted in the publication of a Committee report – including “secondary committee” scrutiny of the Transport and Works (Scotland) Bill and correspondence with the Conveners’ Group on committee annual reports and on electronic voting in committees.

6. The Committee’s normal working pattern during the session has involved fortnightly committee meetings on Tuesday mornings, held in Edinburgh. The Committee has not felt it necessary, during this session, to hold any meetings elsewhere in Scotland, as none of its inquiries has had a sufficiently distinct local angle.

7. The Committee has also held three “awaydays” during the session (although one in fact took place within the Parliament). We have found these events particularly useful in the early stages of major inquiries to enable members to discuss informally, and in a more relaxed environment, their aims for the inquiry and to receive informal briefings to get them up to speed on the subject-matter.

8. Our practice has been to agree topics for inquiry approximately twice a year when the work programme has been discussed as an agenda item. Around half of the inquiries chosen have been the result of referrals or requests from within the Parliament (by the Presiding Officer, the Bureau, Conveners Group or other committees), while the remainder have been proposed by committee members or suggested by the clerks. The Committee has generally found it possible to conduct two larger inquiries at the same time, while also fitting in minor inquiries as time permits.

9. In most cases, the Committee has followed the established pattern for substantial committee inquiries, beginning with the agreement of a remit and the issuing of a call for evidence, followed by a sequence of oral evidence sessions. Where possible, it has then discussed in public the main issues that have arisen, in order to agree in principle its main conclusions, before considering (in private) a draft report and draft standing order changes. (The Committee has also met in private on a few other occasions to consider legal advice or to resolve differences on key issues that have arisen in inquiries.)

10. In most cases, we have found it possible to agree our reports by consensus. In a few instances, one or more members have recorded dissent to individual points, but we have only rarely needed to resort to divisions to resolve major differences of view. We have also largely succeeded in persuading the Parliament as a whole to adopt our recommendations (again, with the exception of our recommendations on Parliamentary time).

11. Because of the internal focus of much of the Committee’s work, many of our witnesses have been MSPs – including, on a number of occasions, the Minister for Parliamentary Business and representatives of the main opposition parties. Other oral witnesses have included current and former UK Ministers, MPs, academics and commentators. Like other committees, however, we have aimed to get beyond “the usual suspects” and to experiment with alternative formats for oral evidence-taking. For example, in our private legislation inquiry, it was valuable to us to hear directly from individuals who had been objectors to Private Bills; and during the Parliamentary Time inquiry, we held two successful “round-table” discussions, plus two “open forum” meetings to which all MSPs were invited.

12. Two of our major inquiries have involved fact-finding visits to other parliaments. A party of four Committee members visited the Dail (and met Irish government officials) in connection with the Committee’s inquiry on private legislation. More recently, during the Parliamentary Time inquiry, a total of five members took part in visits (each involving one or two members) to overseas Parliaments (Norway, Catalonia, Finland and Estonia) and to Westminster.

13. We are convinced that such visits can provide a much greater insight into the way other parliaments work than could be gained in any other way. It is relatively easy to find out about rules of procedure, sitting hours and volume of work from websites and other published sources, but there is still no substitute for seeing at first hand how business is actually conducted, informed by discussions with parliamentarians and officials in their working environment. The overseas visits undertaken during the Parliamentary Time inquiry, in particular, provided the inspiration for the new interpellation procedures that are a key recommendation of our report.

14. Also during that inquiry, we were able to gain a useful insight into the operation of the Queensland and New Zealand Parliaments by means of live discussions with senior officials by videoconference. We believe this is a very valuable means of obtaining comparative information when a visit could not be justified for reasons of time or cost.

15. In our first major inquiry on oral questions, we commissioned an external research company to analyse the views of the public watching proceedings from the gallery. We also took into account the views of six community groups whose input into the inquiry was facilitated by the Parliament’s public participation staff. In a number of other instances, we have sought the views of MSPs through questionnaires. In the right context, we have found these techniques can give a useful additional perspective on existing procedures and enable the likely level of support for possible changes to those procedures to be assessed. On the other hand, we recognise a risk of inducing “consultation fatigue” among our colleagues if the questionnaire method is used too frequently.

16. The Committee has not found it necessary to appoint advisers or reporters in connection with its work. In general, the Committee has relied on the clerks (often working in conjunction with Parliamentary legal advisers) to provide it with the information and advice it requires.

17. We list below various topics on which our successor committee may either need or wish to conduct inquiries. Some of these involve follow-up work from Session 2 reports and inquiries; others are topics we expect to be referred to the Committee or issues we believe would merit further consideration.

18. When the Committee’s major Review of Parliamentary Time report (11th Report, 2006) was published in December 2006, our expectation was for a debate early this year with Rule-changes timed to take effect for the beginning of the new session. The Bureau, however, decided not to allocate Chamber time for a debate, suggesting that it would be more appropriate for the recommendations to be debated early in the new session. We have found this a disappointing and frustrating outcome, given the efforts we went to during the inquiry to consult widely and to give all members a range of opportunities to contribute and comment on emerging proposals. To express this view, we agreed to write to the Presiding Officer (as chair of the Parliamentary Bureau) and copy the letter to all members. A copy of the letter is attached in the Annexe.

19. We recognise that it will be for the new committee to decide whether, and if so how, to press for a debate on our report, and that it may feel the need to re-examine the main recommendations before reaching such a decision. However, we hope it will be prepared to make a case, at the first opportunity, for implementing the new interpellation Rules that we recommended, so that it is still possible for this promising new procedure to be trialled early in the new session as we had envisaged. We also feel strongly that our recommendation of an earlier deadline for lodging motions and amendments for the main debates of the week should be pursued by our successor committee.

20. As noted above, we devoted much time and effort in the first half of the session to oral questioning procedures. That led to a number of changes, including the creation of a separate Themed Question Time, and a new system for randomly selecting members’ names rather than questions. However, we are conscious of a widespread feeling that these Chamber proceedings still do not work particularly well – that is, they are not a particularly effective means for members to obtain information or hold Ministers to account, nor do they provide any of the political drama or attract the media attention of First Minister’s Question Time.

21. The Session 3 committee may therefore wish to take a fresh look at how oral questions are handled in the Chamber.

22. In November last year, the Committee considered letters from the Health and Communities Committees suggesting that the cut-off date for introduction of Members’ Bills (currently the end of September in the year prior to an election – Rule 9.14.15¹) is too late. Both committees had been referred Bills that were introduced immediately before the deadline, and had found themselves with insufficient time remaining (given their other commitments) to complete what they regarded as adequate Stage 1 scrutiny.

23. We did not ourselves have time before the end of the session to consider this issue in detail, recommending instead a review of the cut-off date early in the new session.

24. Any Session 3 inquiry on Members’ Bills, as well as considering the cut-off date for introduction, might review other aspects of the new Rules we recommended in 2004. It could also address concerns raised with us by Rosemary Byrne MSP (the referral of whose Bill prompted the Health Committee letter), including the resources available to the Non-Executive Bills Unit (NEBU).

25. Also at the end of last year, we considered a proposal by the Equal Opportunities Committee (EOC), endorsed by the Conveners Group, for a new Rule requiring committees to conduct equalities reviews at the end of each session. We support this proposal in principle, but believe it would be more appropriate for an inquiry on it to be carried out by a committee that would be subject to the new requirement, consulting other committees that would be similarly affected. We therefore recommend that this should be an early priority for the Session 3 committee.

26. As already noted, a key recommendation of our Review of Parliamentary Time report (11th Report, 2006) is for a new interpellation procedure, which we envisaged being trialled early in Session 3. If this goes ahead, there will clearly be a role for the Session 3 Procedures Committee in evaluating the trial and, if need be, suggesting changes or refinements to the procedures. The report also indicates (paragraph 150) that there may be longer-term implications for Question Time – i.e. that if interpellations become established as an effective regular means of holding Ministers to account, it may be possible to revise oral questioning procedures in consequence (for example, by reducing the time spent each week on themed and general questions).

27. The Parliamentary Time inquiry also considered the current allocation of 16 half-sitting days per Parliamentary year for debates led by one of the non-Executive parties (Rule 5.6.1(b)). The conclusion in the report (paragraph 86) was:

28. We draw attention to this conclusion so that the Session 3 committee can reach its own view of whether to conduct an inquiry on this issue.

29. The new procedures for scrutiny of legislative consent memorandums and motions established as a result of the Committee’s inquiry (7th Report, 2005, The Sewel Convention) marked a major departure from the previous, largely informal arrangements. Those procedures were intended to work in a range of possible future situations, including where there are different political administrations in Holyrood and Westminster. Whether or not that is the outcome of the May election, there may be a case for conducting, at some point during Session 3, a review of how well the new procedures have worked in practice.

30. Such a review could take into account new Westminster procedures currently under development in response to the recommendations of the Scottish Affairs Committee.²

31. The Transport and Works Bill, when it becomes law, should remove from the Parliamentary system most of the current burden of private legislation – in particular, all large Bills relating to transport infrastructure projects. But it will not remove the need for Private Bill procedures altogether, and it can be anticipated that there will still be a handful of small Private Bills introduced each session.

32. Given our role both in making the original case for the Bill, and as a secondary committee in its Stage 1 scrutiny, we will be interested to see how well the new regime works in practice. This may be a case where post-legislative scrutiny would be worthwhile – and while that would mainly be a job for the relevant subject committee, there may be a case for the Session 3 Procedures Committee carrying out an exercise aimed at simplifying Chapter 9A, stripping out those provisions that have been superseded by the Bill (i.e. Rules that are only needed for Parliamentary consideration of Private Bills that authorise major transport infrastructure projects).

33. Such an exercise could also consider other possible changes to Chapter 9A, including whether the Rules relating to intervals between Stages and notice-periods for amendments should now be altered along similar lines to the changes made this session to the Public Bill rules in Chapter 9.

34. During a recent Procedures Committee debate³, Carolyn Leckie MSP questioned whether it is appropriate for MSPs to remain in post as committee conveners, or as committee members, if they cease to be members of the parties they represented at the time of their appointment. At present, such members cannot be forced to resign, even though their remaining in post results in the political balance on the committee getting out of step with the overall political balance in the Parliament. With conveners (or deputy conveners), this can result in the distribution of these posts among the parties departing from the distribution that was (or would be) achieved by the d’Hondt mechanism that has been used in this context. Similar issues could arise in other circumstance where the party-balance in the Parliament changes during the session – for example, as a result of a by-election.

35. The Parliament has never had a procedure for handling Hybrid Bills (that is, Bills that make provision about the public and general law but also include provisions of a private nature). For the same reasons that distinct procedures are needed for Private Bills – to give, in particular, the individuals whose private interests may be adversely affected a direct right to make representations (and not just through their elected representatives) – so a Hybrid Bill would need to be scrutinised in a distinctive way that combines elements of the procedures applicable for Public and Private Bills.

36. Although it has so far been possible to ensure that no Public Bill introduced includes provisions of a private nature (and so has not been deemed to be hybrid), we recognise that the lack of a procedure to use in that eventuality may not be desirable in the long term. This is a topic that the Session 3 Committee may therefore wish to consider.

37. In 1998 and 1999, a number of “transitional orders” were made under the Scotland Act in order to provide an initial statutory framework for matters associated with devolution. As this designation implies, all such orders were intended as temporary “stop-gap” measures until such time as the Parliament is in a position to replace them with provision of its own. Two of the transitional orders that still require to be replaced fall within the remit of the Procedures Committee.

38. One is the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 (SI 1999/1379). This deals with certain formal procedures associated with Royal Assent to Scottish Parliament Bills, the publication of the resulting Acts, and about the statutory interpretation of such Acts.

39. The other is the Scotland Act 1998 (Transitory and Transitional Provisions) (Orders subject to Special Parliamentary Procedure) Order 1999 (SI 1999/1593). This sets out the procedures to be followed where, by virtue of a pre-devolution UK Act, orders made under that Act are subject to special parliamentary procedure. By virtue of the transitional order, such an order (a “special procedure order”), if objected to, requires to be confirmed by an Act of the Scottish Parliament and, if not objected to, requires to be laid before the Parliament and be subject to annulment within a period of 40 days.

40. Each of these transitional orders, unless previously revoked, remains in force until the date appointed by or under an Act of the Parliament (ASP).⁴ Given the subject matter, the most appropriate means of putting such Acts in place might be through Committee Bills introduced by the Procedures Committee. (Alternatively, if Executive Bills were introduced, the Procedures Committee is likely to be designated lead committee.)

41. Such Bills should be uncontroversial (and might simply replicate much of the current transitional orders), but developing them and seeing them through their Parliamentary stages would still be a significant piece of work. The new Committee may therefore wish to begin consideration of it at an early stage in the session.

42. Another transitional order requiring replacement by an ASP is the Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999 (SI 1999/1096), which sets the framework for the making and Parliamentary scrutiny of statutory instruments. The Subordinate Legislation Committee (SLC) has spent much of this session developing proposals for a new regulatory framework in Scotland, with a view to then introducing a Committee Bill to replace the transitional order.⁵

43. The Bill itself should follow at some point during Session 3 – at which point the Procedures Committee will need to consider (no doubt in conjunction with the SLC) what changes to Chapter 10 of the standing orders are needed in order to bring it into conformity with the revised statutory regime proposed in the Bill.

As you know, the Bureau confirmed at its meeting last Tuesday (which I attended on behalf of the Procedures Committee) its previous decision not to allocate time for a debate on the Committee’s 11th Report, 2006. That decision was discussed at Tuesday’s Procedures Committee meeting. As you will see from the Official Report of the meeting (due to be published on 12 March), the Committee agreed that I should write to you expressing members’ frustration and disappointment at the Bureau decision.

This report was the product of an 18-month inquiry. We took written and oral evidence from a wide range of witnesses, and travelled to four overseas parliaments to gather ideas. We also went to great lengths to give all members a chance to contribute directly to our deliberations – including by holding “open forum” sessions to which all MSPs were invited, by publishing a “consultation report” and by leading a Chamber debate on that report. Throughout this process, we made clear that our aim was to have our final report debated before the end of the session so that any agreed Rule-changes could take effect from the beginning of Session 3.

Clearly this will not now be possible, and it will be left to our successors on the new Procedures Committee established after the election to decide whether and how to take the recommendations forward. We consider this unsatisfactory not just from our own perspective, but also from that of the members of the Session 3 Committee who may well feel that a partial re-run of the inquiry is necessary before they can reach their own view.

We recognise that the 12 half-days the Bureau was required to make available for committee debates during the current Parliamentary year (under Rule 5.6.1(a)) have already been used, and we would accept not being given time for a debate if it was simply a question of no further time being available. However, the impression given by some Bureau members was that other considerations contributed to the decision on this occasion – including their personal opposition to some of the report’s conclusions and a concern that the report has not yet been widely read and understood by MSPs.

We believe it is unprecedented for a committee report to be “unpicked” in this way by the Bureau. Like all committees, the Procedures Committee was established by, and is accountable to, the Parliament as a whole. We believe all members should have the chance to decide, after public debate, whether to accept or reject our recommendations.

¹ Recommended in our 6th Report, 2004, A new procedure for Members’ Bills.

² Fourth Report of Session 2005-06, The Sewel Convention: the Westminster perspective. See also the Second Special Report of that session containing the Government’s response and the First Report of 2006-07, Work of the Committee in 2006.

³ 21 December 2006, cols 30789-90.

⁴ SI 1999/1379, article 8; SI 1999/1593, article 2(2).

⁵ See that committee’s 14th Report, 2007, Inquiry into the Regulatory Framework in Scotland..